Rules Are For Breaking

I comment a lot on the relevance of “rules” in terms of the New Zealand immigration process and mostly because they are the back-bone as to how the whole system works. Migrants are basically pushed through a blender of criteria, rules and policy, and the slices that fall out, should resemble a visa of some description.

However it is easy to overlook, that for most people, their knowledge of how these rules actually work will be limited to tick boxes in an online form or if you go old-school, questions on a paper-based application. Some migrants are brave enough to try and read Immigration New Zealand’s website to see if they can decipher how the process works, but very few applicants find themselves in amongst the weeds of the formal Operational Manual (most wouldn’t know what that is).

Funnily enough, the most important of the process, the thing that defines if you are going to be successful or otherwise is usually the least understood. INZ attempts (poorly) to simplify these in to it’s online marketing, however that often creates more problems than it solves. Our immigration instructions (the rules) are complex, lengthy and structured in such a way that individual interpretation, plays a really important (and often inconsistent) part.

So to clear away the fog, and demystify the process a little, we are going to explain how the various different rules work, how much discretion there is in each of those sets of rules and how sometimes, a successful outcome can be achieved, even when the rules would suggest a very different conclusion.

Rules or Laws?

The Matrix was and still is one my favorite movies, well at least the first one - the sequels were another story. If you have seen it, then it probably left you with the same “what just happened” feeling that I had, which is ironically similar to the feeling you have when you try and wade your way through visa policy.

"Do not try and bend the spoon, that's impossible. Instead, only try to realize the truth...there is no spoon. Then you'll see that it is not the spoon that bends, it is only yourself."

Comparing this to our visa system, even if something appears to resemble a spoon, INZ would easily try and convince you that what you are holding is in fact a fork - which isn’t really there at all.

The visa rule book saga starts of course with the Immigration Act and the Immigration Regulations, which are the legal instruments that govern our visa system, however these wont tell you how to apply for a visa. They do set out the key framework for what a visa is, who can issue one, what happens when yours expires and a 478 other relevant clauses, but to work out whether you qualify you need the manual. Regulations sit alongside the Act and provide more specific details in terms of how the Act is delivered.

But that is not where the magic happens…for that we turn to the Operational Manual, which is not a set of laws, but instead a series of documents, that provide direction to Immigration New Zealand as to how to deliver the immigration wishes of the current Government administration.

The Operational Manual is a lot like the operating manual for a your new HD television. It tells the user how to turn the thing on, change the channels, set the brightness or what to do if you see smoke pouring out of the back of it. In the case of visas, the Operational Manual tells the case officer or the applicant which rules to apply, how the application should be processed and what to do if the application is destined to fail (should you see that smoke). There are hundreds of pages of these guides, and they overlap, intersect and cross-reference. They are also a bit of a patchwork as successive Governments have added to or taken away from them over the years. They are updated regularly and so to understand them you have to stay on top of them. Anecdotally, I have heard of case officers being given 10 to 15 days of training and a link to the rules before being unleashed on unsuspecting applicants. I have two decades of experience in these criteria, and still check them constantly - the big difference is I know my way around them, what to look for and also not to assume that just because it is written down in black and white, that it will be applied in the same way.

There are, alongside these guides, a number of other documents such as internal administration circulars, ‘visa-paks’ and other guidance notes, that are given to immigration officers as a means to further clarify the words in the Operational Manual. All of these are publicly available, but very few applicants know they exist.

For the most part, the Operational Manual is written in such a way that officers should be able to read it, and then work out whether someone should be given a visa or not - however as with all written language, there is the issue of interpretation and arguably there are plenty of sections of this manual that can be interpreted in multiple ways. Even the clearest of instructions can be caked in mud from time to time and we need to step in to give them a good hosing down.

Flexible or Rigid

Once you have worked out how these rules are administered and the various layers involved, the next question that comes in to play is whether there is any flexibility in those rules. I am often asked by applicants (usually those in a spot of bother) whether INZ can ‘ignore’ or ‘overlook’ certain aspects of the rules. The answer to that depends firstly on which set of rules you are dealing with and then secondly, how high up the ladder you can climb, if your situation warrants it.

Temporary Visa Instructions - While the rules for temporary visas are fairly rigid, one of the benefits of this set of guides is that immigration officers are given (through one specific sentence in those rules) the ability to consider any application as an “exception to instructions”, known in the trade as simply an ETI. This basically says that even if an applicant fails to meet the criteria for the visa they have applied for, if the officer is satisfied that they still meet the objective of those rules and their situation is compelling enough, then an application can be approved. This exception applies across the board, to all temporary visa applicants. That is a pretty significant amount of power right there, although I would add that exceptions are not given easily and your circumstances do in fact need to be compelling.

A good example of this would be a case we handled recently (ironically for the family member of an INZ case officer) where they had exceeded the amount of time allowed on a visitor visa. We were able to argue for an exception to instructions, to secure more time than the rule book permitted.

So for temporary visa applications, there is some wiggle room to argue your case, however this differs quite significantly to the process applied to resident visas.

Resident Visas Instructions - When it comes to the rules and applications for residence, things are a little more black and white and a lot less “bendy”. There is, at least within the Operational Manual, no specific discretion given to immigration officers at all. Simply put, you either meet the requirements or your don’t. Even if your situation is compelling and you believe you deserve to be granted a visa, regardless of the rule book, there is no specific mechanism in the policy to allow offers to exercise their discretion.

There are some sections of resident visa policy, which allow officers to consider changes in circumstance or factors beyond an applicant’s control but generally speaking the rules are indeed the rules. This is why it is really important for all applicants to understand those rules, before they part with their hard-earned money, and even harder earned time to make an application. If you don’t get this right from the start, there is no going back and no wiggle room, even if you think you really, really deserve that visa.

Navigating Policy

One of the biggest headaches that most applicants have, when it comes to working their way through the minefield that is the INZ Operations Manual, is knowing how all the dots connect. For example, if you secure a Work Visa, does that lead to Residence and if so, how are they connected at all? Because the Operational Manual is written for immigration officers, it is not at all, applicant friendly.

That then brings in the INZ website, which attempts to condense the complexity of the rules in to more user-friendly language, however in doing so, it removes the fine-print, some of which is actually really crucial.

For example, you might be able to determine from the website, that you qualify for the Straight to Residence pathway, however what if you or your partner has a medical or character issue? Nowhere on that site, will it explain in any significant detail how that issue might be viewed by INZ or how a medical waiver might come in to play. To navigate through the rules, the process and all the intricacies that the Operations Manual has to offer, you need a GPS on steroids or someone who understands not only how those rules are written but how they all link together.

Then, just when you think you have figured it all out, INZ will probably go and change it all. Whilst the frequency of rules has changed, since the head-spinning days of covid and border lockdowns, changes do still occur and many of them can fundamentally alter how someone will qualify or not.

From experience, and after more than twenty years of reading and digesting these rules, it would not be boasting to suggest that I know them more than most, however that doesn’t mean I avoid reading them. In fact you will usually see me with my head buried in the rules on a daily basis, to check for changes, interpretations and clarifications. The advantage I have, along with my colleagues, is the ability to know where to look and what to look for.

In truth, we try to shield our clients from the complexities of the rules, because as an applicant you just need to know whether you meet them, given you will hopefully only ever have to get through them once in your life. A good guide will lead you to where you need to go, highlighting the various landmarks along the way, without necessarily making you read the map.

What INZ Won’t Tell You

As part of my work in the wider adviser community, I offer to assist other advisers with their own navigation of the rules as they help their clients through the process. One of the things I remind them of (regularly) is that while there are rules and some have flexibility where others have none, at the end of the day, these are guidelines. INZ will tell you repeatedly that they have no discretion when it comes to certain situations (particularly residence) but ultimately they can do whatever they like.

In fact there is an entire layer of INZ management that has similar powers as have been bestowed upon the Minister, which means that visas can be granted as exceptions in almost every case. This is particularly helpful (to INZ) when they make a misstep in the rules and end up having to fix something, however it can also be leveraged in some very specific and rare circumstances, by advisers on behalf of applicants.

I have handled many of these sorts of situations, securing residence for people who have found themselves at the very end of a long rope and unable to move ahead. Of course those have been pretty exceptional situations and not run-of-the-mill, and we are very selective about who we might decide to represent in such situations. INZ of course doesn’t advertise this fact and so to make these sorts of cases work, requires a very carefully managed process - something best left to your experienced guide.

Navigating the immigration rule-book is not something that you can do overnight and understanding the various layers, how they fit together and how ultimately it can often come down to interpretation is one of the reasons my profession exists.

If your NZ visa map is looking a little too wrinkled or torn around the edges, then why let us do the navigating for you.

Until next week!

Turner Hopkins Immigration Specialists